Bankruptcy Law

Pursuant to Article L. 622-17, I of the Commercial Code , subsequent claims that regularly arise after the opening judgment for the purposes of the procedure or the observation period, or in consideration for a service provided to the debtor during this period, are paid when due . The legal representative must therefore pay a subsequent preferential claim when it falls due, without having to check …

Payment on due date and individual right of action

Pursuant to Article L. 622-17, I of the Commercial Code , subsequent claims that regularly arise after the opening judgment for the purposes of the procedure or the observation period, or in consideration for a service provided to the debtor during this period, are paid when due . The legal representative must therefore pay a subsequent preferential claim when it falls due, without having to check whether he has the necessary funds to pay all the creditors .

In the absence of payment on the due date, claims are in principle payed in the order set out in II of Article L. 622-7. However, case law accepts that a subsequent creditor, who is not deprived of his individual right of action, may sue for payment of a claim that has not been paid when due  or obtain an enforcement order and have it enforced regardless of the order in which privileges are exercised . As under pre-revolutionary law, payment remains the "prize of the race": the first seizure is the first to be paid, regardless of the order of his claim, i.e. regardless of the existence of other claims with preferential ranking . In fact, he is entitled to exercise his right of individual action to ensure the recovery of a claim that arose after the judgment opening the insolvency procedure and has not been paid when due, without having to respect the creditors' ranking when they have not taken the initiative of individual action .

Since the right to be paid on the due date cannot be dissociated from the right to take legal action, the tax collector who is the holder of a debt that arose after the opening judgment and has remained unpaid may issue a third-party notice to the legal representative with a view to recovering the debt , unless the legal representative has paid the sums collected in the performance of his duties to the Deposit and Consignment Fund (Caisse des dépôts et consignations) . This deposit renders the funds exempt from seizure, so that subsequent creditors cannot bring an individual action and that the funds are allocated to the settlement of creditors according to their rank . The creditor may also seize the funds from the notary responsible for selling the debtor's property, and pay himself , or seize the debtor's assets .

The exercise of the individual right of action is not subject to the establishment of a list of claims that have not been paid, or to the entry of a claim on that list . Indeed, the fact that a claim has not been entered on the list of subsequent claims has no effect on the creditor's right of action before the ordinary courts, where the claim falls within the scope of Article L. 622-17 of the Commercial Code .

Applicable to the receivership procedure by reference from art. L. 631-14 C. com.

See for an application, Cass. com., 15 October 1991, LawLex202200002527JBJ (RJ).

Cass. com., 11 February 1997, LawLex202100005183JBJ (LJ).

Cass. com., 6 July 1993, LawLex202100002492JBJ (RJ).

Cass. com., 11 February 1997, cite above; 22 April 1997, cited above.

Cass. com., 28 June 2016, LawLex202100002488JBJ (LJ).

Cass. com., 10 July 1990, LawLex202100005138JBJ (RJ).

Cass. com., 20 March 2001, LawLex202100002501JBJ (RJ).

Cass. com., 9 May 2018, LawLex202100002463JBJ (LJ) ; 7 September 2010, LawLex202100002493JBJ (RJ) ; 6 October 2012, LawLex202100002490JBJ (LJ) ; 13 October 1998, LawLex202100005182JBJ (LJ).

Cass. com., 22 April 1997, LawLex202100005185JBJ (LJ).

Cass. com., 3 June 1997, LawLex202100005184JBJ (LJ).

Cass. com., 25 June 1996, LawLex202100002486JBJ (LJ) ; 20 June 1989, LawLex202100002482JBJ (RJ).

Cass. com., 5 May 1998, LawLex202100005186JBJ (LJ).

Cass. com., 22 May 2007, LawLex202100002495JBJ et LawLex202100002498JBJ (RJ).

Bankruptcy Law

444. Payment on due date and individual right of action

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444. Payment on due date and individual right of action

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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